Legal Docket - Remembering Ruth Bader Ginsburg

NICK EICHER, HOST: It’s Monday morning and another work week for The World and Everything in It. Today is the 21st of September, 2020. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. U.S. Supreme Court Associate Justice Ruth Bader Ginsburg has died. She died on Friday at her home, among family, at age 87.

A pioneer for the rights of women, Ginsburg blazed a trail for women to break out of traditional expectations and pursue a career. It’s hard to overstate her influence in that respect. 

Ginsburg battled prejudice against not only women but against Jews. She had to overcome stereotypes during a time of entrenched expectations for women. She did so with intelligence and legal strategy.

This is from a 2016 interview with TV host Jane Pauley on CBS:

GINSBURG: I had three strikes against me. One I was Jewish. Two, I was a woman.  But the killer was I was the mother of a four year old child.

EICHER: Ruth Bader Ginsburg was born to Russian-Jewish immigrants in Brooklyn, in 1933. Her mother, Celia, worked in a garment factory. Cancer took her life when Ginsburg was just 17.

GINSBURG: She said two things. Be a lady, be independent.  Be a lady meant don’t give way to emotions that zap your energy, like anger. Take a deep breath and speak calmly.

REICHARD: Her father, Nathan Ginsburg, made a living as a furrier. The family valued education, and she graduated first in her class at Cornell University where she studied literature. 

That’s also where Ruth Bader met the love of her life, Martin Ginsburg. They married in 1954 and went on to have a daughter and a son. Their marriage lasted 56 years until he died 10 years ago. Ginsburg called her husband her “biggest booster.”

EICHER: She enrolled at Harvard Law School at age 23, and in a class of 552 men—she was among 9 women. During that time, she cared for her first child and her husband as he received treatment for cancer.

He recovered and she followed him to New York for his job.  Ginsburg transferred to the Columbia law school where she graduated first in her class of 1959. 

But her impressive record didn’t translate into much in the way of work. She received offers from law firms, but at lower salaries than for men. She then took on work as a law professor and directed the Women’s Rights project of the ACLU. 

She argued and won six sex discrimination cases before the U.S. Supreme Court.

REICHARD: These experiences informed the course of her life; a strategic path to expand the rights of women. It made her a feminist icon; they made movies about her.

GINSBURG: I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

I called up two people to reflect upon Ruth Bader Ginsburg’s life. One is Jennifer Braceras, a lawyer and director of the Independent Women’s Law Center, a project that advocates for women in legal policy. I asked her how she’d describe Ginsburg.

BRACERAS: The word I would most use to describe her is she was a fighter She fought for respect and recognition in law school, in the legal profession for herself, for other women, for her daughter.  And she took that fight to court and ultimately she was a fighter against cancer which she had to battle numerous times.

I also spoke to Adam Carrington, associate professor of politics at Hillsdale College. He writes extensively on constitutional law and the Supreme Court. 

I asked him why he thinks Ginsburg became a celebrity jurist, as compared with her colleagues. They don’t have bumper stickers, socks, and t-shirts with their faces on them.

CARRINGTON: She had a real flair for the dramatic. Even as a judge, she had people would look for what were called dissent collars as part of her regalia as a judge on days that she might be reading a dissent. And I think little things like that, I think showed that she had had a persona that people could gravitate towards. In addition to just having the great competence intelligence and being a trailblazer.

Ginsburg’s style of dramatic was more understated. About those collars…

GINSBURG: This is my dissenting collar. It’s black and grim.

Ginsburg was great friends with her ideological opponent on the court, the late Justice Antonin Scalia. I asked Braceras about that friendship.

BRACERAS: You know, it’s funny, my kids asked me about that the other day. They said, you know, mom, I heard she was really good friends with Justice Scalia!  And I actually heard she liked Brett Kavanaugh! And, you know, what made me sad about that was the fact that they were surprised. And what I tried to explain to them is there are only nine people on the Supreme court, and it’s very difficult to hate somebody that you work with so closely over the course of many years.

Sometimes it’s the little things, the peculiarities of a person, that’s memorable. Adam Carrington:

CARRINGTON: I will say that one phrase I loved that she would always use when she would argue that something made sense according to the law or that something was a good fit. She would say,  “that fits the bill.” And that was just a recurring sort of idiom she really liked to employ that I thought was it was, it was a Ginsburgism, if you can, if you can call it that. 

You know, I do think she was a clear, crisp, witty writer that, you know, we don’t have enough of those in the legal profession. And I think that being able to write in ways like that was a good thing for her legacy.

Speaking of which, Braceras chose one case in particular that helped cement it:

BRACERAS: I think her most notable opinion was her majority opinion and the case of US versus Virginia, the case about the Virginia Military Institute.  It was a seven to one decision that held that Virginia had to allow women into the Virginia military Institute. It had previously been an all male institution. Justice Ginsburg wrote that opinion. And that was a landmark case. So sort of pushing sex and gender closer to race as far as courts are concerned.

Back to those spicy dissents for which Ginsburg was so well known.  

Braceras pointed to a case involving pay discrepancies between men and women. The majority decided the case on grounds of time limitations and not the underlying problem.

BRACERAS: Another opinion that she’s very well known for was her dissent in the Lily Ledbetter case, which she felt so strongly about, she read from the bench And she was very upset with the court’s decision. She read a blistering dissent from the bench, and Congress agreed with her from a policy position and, and altered the law to say what she had wanted it to say.

Blistering in content, yet not in delivery, as her mother taught her. At WORLD, we say, “sensational facts, understated prose.” Let’s listen to Ginsburg reading part of that dissent.

GINSBURG: In our view, the Court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination. This is not the first time this court has ordered a cramped interpretation of Title VII incompatible with the statute’s broad remedial purpose.

No life is without some regrets, of course. In 2016, she spoke disapprovingly of candidate Donald Trump, a compromise of judicial impartiality. She apologized, with a jab at the media.

GINSBURG: Judges should not talk about political candidates. And the press has blown this up out of all proportion.

For Christians, her support of abortion at any stage of pregnancy is most concerning. Yet, Ginsburg regretted the way in which the Court stepped into that debate, cutting short the democratic process.

GINSBURG: Better to go step by step and have a series of decisions rather than have one decision that made every law of every state, even the most liberal, unconstitutional. Too giant a stride.

Ginsburg was a stickler for rules and well known for her knowledge of legal procedure. Braceras pointed out how much of a stickler in the context of the Equal Rights Amendment. Ginsburg very much wanted the ERA to become law, but…

BRACERAS: Justice Ginsburg said in several speeches in the last few months that she didn’t think the Equal Rights Amendment had been properly ratified and that in order for it to become law, they would have to start from the beginning and reintroduce it in Congress, pass it and send it back to the States for ratification, or she said, put it back in the political hopper and start again. That’s something I really respect about her because process matters and that’s true whether you’re arguing in court or whether you’re trying to pass a constitutional amendment. 

So, you know, I think her legacy is a commitment to process and making sure that things are done correctly. And in the case of the ERA, that would mean starting over again.

I want to add my own personal reflection about Justice Ginsburg, just briefly. 

I knew about her pioneering work on behalf of women before she became a justice. I didn’t agree with some of her opinions. But I did feel inspired by her, and I knew opportunities in my life came from the work done by women like her. 

I’m grateful.

Ginsburg didn’t back down from her convictions, even though sometimes I wished she had. Yet to this day I admire her example of standing firm. 

Also, I appreciated her perspective on age. I’m someone who  didn’t figure out what I really wanted to do until I was 48 years old. So I really appreciated that Ginsburg didn’t fret about age. 

Here she is on a recent BBC interview, referring to her nomination.

GINSBURG: I was age 60 when I was nominated, and some people thought I was too old for the job. Well, now I’m into my 27th, starting my 27th, year on the court. I’m one of the longest tenured justices. So if you worried about my age, it was unnecessary.

Finally, this word from Ginsburg on how she would like to be remembered, from MSNBC:

GINSBURG: Someone who used whatever time she had to do her work to the very best of her ability and to help repair tears in her society. To do something outside myself.

U.S. Associate Supreme Court Justice Ruth Bader Ginsburg.

And that’s this week’s Legal Docket.

(AP Photo/Doug Mills, File) In this Aug. 3, 1993, file photo, then-Judge Ruth Bader Ginsburg poses in her robe in her office at U.S. District Court in Washington. Earlier, the Senate voted 96-3 to confirm Bader as the 107th justice and the second woman to serve on the Supreme Court.

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